Non-Refoulement: A Cornerstone

The most important protection principle for those who are forced to flee is non-refoulement. This requires that no one be sent back to where his life or freedom is threatened. Non-refoulement is derived from the universal prohibition on torture, as well as prohibition on cruel, inhuman and degrading treatment. As non-refoulement is considered a customary international law, it is accorded to both asylum seekers and refugees alike.

Even if states are not party to the 1951 Convention or other human rights instruments, non-refoulement is considered so inherently important for all of humanity (“jus cogens”) that it exerts obligations on all states. Additionally, the norm is non-derogable. This means that states cannot express reservations to this provision in any treaty where it appears, nor can it be ‘suspended’ in emergency situations. To avoid refoulement, all states are obliged to conduct refugee status determination (RSD) prior to deporting or turning away anybody seeking international protection.

Article 33 of the 1951 Convention

Article 33 of the 1951 Convention prohibits expulsion or return (‘refoulement’). It states that:

(1) No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

(2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

There are limitations to non-refoulement in Article 33. Although Article 33(1) extends a certain level of protection to asylum seekers, the grounds upon which expulsion should be prevented is limited to the same grounds upon which refugee status can be accorded. This leaves those fleeing generalized violence or those without sufficient proof unprotected.

Article 33(2) withdraws protection from refugees who have committed a “particularly serious crime” after admission, and are deemed to be “a danger to the community of that country”. This provision is open to interpretation, and runs the risk that politically-motivated judgments can be taken as reason to deny international protection. There may also be large discrepancies between what constitutes a “particularly serious crime” between countries. Homosexuality, for example, carries the death penalty in certain countries.

Human rights instruments: stronger protection

Acknowledging the limitations of Article 33 of the 1951 Convention, note that human rights instruments generally have fewer conditions placed on the prohibition of refoulement — and can therefore offer protection to a wider population. Treaties include the following.

Article 13 of the International Covenant on Civil and Political Rights, which establishes a duty to ensure due process around attempts to deport foreigners:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This provision establishes far wider grounds upon which acts of refoulement can be alleged, expanding protection to refugees who plausibly fear torture, even if proof is only in the form of country of origin information (COI) on patterns of gross human rights violations.

(1) No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

(2) For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Article 22 of the American Convention on Human Rights:

(6) An alien lawfully in the territory of a State Party to this Convention may be expelled from it only pursuant to a decision reached in accordance with law.

(8) In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.

(9) The collective expulsion of aliens is prohibited.

Article 12 of the African Charter on Human and Peoples’ Rights:

(4) A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law.

(5) The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.

Article 2 of the Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Convention):

(3) No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2.

Whilst this expands the prohibition on refoulement to those whose physical integrity is compromised, it reinstates the grounds on which this can occur – the same as for refugee status – though these grounds are wider in the African Convention and cover more than just targeted persecution.

Issues in practice

Although states commonly practice closing borders, especially when faced with large flows of refugees mixed with armed actors, it amounts to refoulement.

If asylum seekers are not screened before being sent back, refoulement may take place. Screening mechanisms may be in place, but are ineffective if undertaken by non-specialist border forces in stressful situations, e.g. in maritime rescues and remote desert crossings.

Few refugees are aware of their right to non-refoulement and due process, and legal safeguards are often absent in rushed deportations. Refugees’ inability to appeal such decisions once they have been returned makes non-refoulement difficult to challenge even if it is possible on paper.

Strategies

Advocacy and capacity building of law enforcement and border control officials are crucial in preventing refoulement at any stage of a refugee’s migration trajectory.

Human rights law, including the Convention against Torture in particular, can provide greater protection against refoulement. It should therefore be invoked in litigation and advocacy. Human rights bodies provide a forum especially when interim measures are needed, or in the case that redress and prevention are not forthcoming in the national justice system.

Accurate COI should be presented to decision-makers regarding patterns of abuse and violence in the state to which return is proposed.

If your clients are deported in violation of the principle of non-refoulement, contact the International Refugee Rights Initatiative’s (IRRI) Post-Deportation Monitoring Network. IRRI’s stance is that even a failure to monitor what happens after deportation can amount to refoulement.

It is important to note that some states’ and UNHCR’s obligations regarding non-refoulement of refugees differ: governments and UNHCR are bound by different thresholds for return. States not party to the 1951 Convention are only required not to refoule refugees, i.e. to refrain from sending them back to where their lives or freedom would be threatened. In comparison, UNHCR’s Statute permits the Agency to facilitate voluntary return, even if there are still security concerns in the country of origin.

As noted by ExCom in 1993, it is difficult to identify true ‘voluntariness’ in voluntary return. Therefore, there is a need for UNHCR to scrutinize objectively the refugees’ situation. “Voluntariness” implies an absence of any physical, psychological, or material pressure. However, this is often clouded by the fact that for many refugees, a decision to return is dictated by a combination of pressures due to political factors, security problems or material needs.

Many refugees freely choose to return home to situations of precarious stability or even continuing conflict or tension, but which they consider “safe enough”, well before the international community could determine that they no longer need international protection. When facilitating such voluntary return, UNHCR should ensure that the refugees are properly informed of conditions in the areas of return and that the return of each individual is wholly voluntary.